2014Da35396 Unlawful gains

1. J.

5. G.

person

2. D;

3. E.

4. F;

6. A;

9. H;

Appellant, Appellant

7. B

8. C.

Appellant, Appellant

110. I

Korea Land and Housing Corporation

Seoul High Court Decision 2013Na24513 Decided April 25, 2014

November 26, 2015

The part of the lower judgment against the Plaintiffs and the Intervenors succeeding to the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

The defendant's appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. As to the ground of appeal on the site for power supply facilities

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, it is reasonable that the lower court, as stated in its reasoning, did not err by misapprehending the legal doctrine on the scope of basic living facilities and the duty of installation thereof, deeming the first site area as the basic living facilities for electricity supply.

B. As to the grounds of appeal on the costs relating to structures, military units, and capital costs, the lower court calculated the building costs ( retaining walls), military unit costs, and capital costs, by dividing each cost into the proportion as indicated in its reasoning, on the grounds that both the building costs, military unit costs, and capital costs are relevant to the construction of basic living facilities.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as to the scope

2. Judgment on the grounds of appeal by the Plaintiffs and the Intervenor succeeding to the Plaintiff

A. As to the ground of appeal on the scope of basic living facilities

(1) It is difficult to view the cost of installation of basic living facilities according to the pertinent regional conditions as falling under the cost of installation of basic living facilities under Article 78(4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8605, Oct. 17, 2007; hereinafter referred to as the “Act”). If the person subject to relocation measures is not subject to the said basic living facilities, such cost of installation of basic living facilities such as roads, etc., such as the cost of installation of roads outside the public service zone would go against the principle of equity in relation to the general buyers of the housing site or housing. Moreover, according to Article 41-2(1) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8605, Oct. 17, 2007; hereinafter referred to as the “Act”), the cost of installation of basic living facilities, such as cost of installation of basic living facilities outside the public service zone, etc. is not included in the said cost of construction cost.

In light of the above legal principles, the court below is just in holding that construction costs, etc. are not included in the cost of creating basic living facilities, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles regarding the scope of basic living facilities, or by exceeding the bounds of the principle of

(2) The lower court calculated the construction cost of a structure (a bridge) equivalent to the cost of creating basic living facilities by adding value-added tax and price fluctuation rate to the cost of creating basic living facilities according to the Defendant’s calculation method after deducting KRW 24,164,40,000 from the net construction cost of a structure (bridge) of KRW 221,209,50,000 from the ecological corridor construction cost of KRW

In light of the records, the above calculation method of the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the free evaluation of evidence.

B. As to the grounds of appeal on the calculation of unjust enrichment, the lower court presumed that the legitimate sale price of a resettled housing site with a size of 265 square meters or less, which is the limit to the supply of a resettled housing site, should be calculated by dividing the amount remaining after deducting the installation cost of basic living facilities from the total project cost (the cost of creating a housing site) into the area of oil supply. In this case, the lower court stated that the legitimate sale price per square meter in the instant case is KRW 1,430,947, and stated that the amount was “1,430,947 (total project cost = 4,468,305,305,204,200 - Total project cost of KRW 1,164,64,579,485: 2,312,741m).”

However, when calculating according to the above formula, the value is 1,428,460 won per m, and the court below found the taxi creation cost to be 2,386,072 square meters, and the cost of installing the main facilities for living period to be 1,158,894,742,123 won, as it is apparent that the taxi creation cost was 4,464,358,057,00 won per m, and the cost of installing the main facilities for living period was 1,158,894,742,123 won. Thus, the court below erred in the misapprehension of the reason due to the error in calculation (see, e.g., Supreme Court Decision 89Meu27949, Apr. 10, 19

3. Conclusion

Of the judgment of the court below, the plaintiffs and the intervenors succeeding to the plaintiff are reversed, and this part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo

Justices Go Young-young

Justices Kim In-young

Justices Lee Dong-won